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HomeMy WebLinkAboutHosted Global Service Agreement with The Active Network, Inc. for Products and SoftwareaNOWWONETWORK Hosted Global Services Agreement This Hosted Global Services Agreement ("Agreement") is made effective as of August _, 2005 and entered into between The Active Network, Inc., a Delaware corporation, ("Active" or "we" or "us") and City of Meridian ("you" or "your" or "Agency"). Active agrees to provide you the Services (as defined below) subject to the following terms and conditions: 1. Services. We will provide you with access to a fully -hosted version of Active's hosted product, "the Product", through our website. To assist us in the successful implementation and promotion of the Services, you agree to provide us with certain information requested by us relating to your organization. The Services and the functionalities and features of the Product and related consulting fees are more specifically described in Exhibit 1 attached hereto and made a part hereof. 2. License to Intellectual Prooerty/Promotion. a) Active shall retain all right, title and interest in and to the Product and its software, trademarks, service marks, logo and trade names worldwide ("Intellectual Property") subject to a limited license necessary to perform this Agreement. You shall use the Intellectual Property only as provided, and shall not alter the Intellectual Property in any way, or act or permit action in any way that would impair Active's rights in its Intellectual Property. You acknowledge that your use of the Intellectual Property shall not create in you or any other person any right, title or interest in or to such Intellectual Property. Any goodwill accruing from the use of the Intellectual Property shall inure solely to the benefit of Active. b) Active hereby grants to you a limited, non-exclusive, non -transferable license (i) to use the Product in accordance with Active's specifications, and (ii) to display, reproduce, distribute and transmit in digital form Active's name and logo in connection with promotion of the Services. You hereby grant to Active a limited non -transferable license to use, display, reproduce, distribute, modify and transmit in digital or printed form information provided by you relating to your organization, including your organization's name, trademarks, service marks and logo, in connection with the implementation and promotion of the Services and the promotion of your organization. You will make reasonable efforts to promote and encourage adoption of the Services, including displaying Active's name and logo in any newsletters, printed registration forms or mailings provided by you to prospective participants. 3. Information Security. We will collect certain personal identifying information from users of the Service. Such information shall be stored on a secure remote server. You may access this information at any time by downloading it from our servers using your private password and "login" identifier. You will be responsible for protecting the privacy and security of any information that you retrieve from our servers and shall insure the prevention of unauthorized or illegal use or dissemination of such information. All information collected by Active shall be jointly owned by Active and you. 4. Privacy. Each party shall comply with all applicable laws, regulations and guidelines governing online privacy in fulfilling its obligations hereunder and in collecting and using personal information about users of the Service. Active may use contact information provided by users or by you to send information about our services or our partners to such users; provided, however, that users may opt out of any such uses in accordance with our privacy policy. You agree to such uses and further agree that we may disclose information if we believe, in good faith, that it is necessary in order to: (a) comply with the law, (b) enforce the terms and conditions of this Agreement, or (c) protect the rights of you or us, to the extent that such disclosure is not otherwise prohibited by any law or regulation. 5. Fees. Transactions entered directly by participants through the Website will be assessed the customary service fee charged by Active to online registrants ("Service Charge"), as described below. Transactions entered by a member of the Agency on behalf of a participant will be assessed a Service Charge equal to 1.5% for cash or check, and 3.75% for credit card transactions. Each online registrant will pay the event registration fee charged by Agency plus a Service Charge equal to 6.5% of the registration fee plus $.50, with a minimum Service Charge of $2.00. If the registration fee is between $1504500, the Service Charge will be 3.5% plus $5.00, and for fees above $500, the Service Charge will be 2.5% plus $10.00. We may change the Service Charge at any time and you agrge to such change unless you provide us with written objection to such change within 30 days from the date such change is first implemented. We will be responsible for collecting all registration fees charged by you and all Service Charges assessed by us. All registration fees, except Service Charges, are your exclusive property. Any registration fees collected by us will be sent to you twice a month and Service Charges shall be retained by us. You shall guarantee and pay to Active a minimum aggregate Service Charge, whether through offline or online transactions, of $750 per calendar quarter (the "Minimum Quarterly Service Charge"). You shall pay to Active the difference between such Minimum Quarterly Service Charge and the actual Service Charges collected by us during such quarter, which will be billed at the end of each quarter beginning from the date set forth below. Active shall not be responsible for processing or making any refunds. All credit card refunds processed will be accessed a $.10 fee charged by Active to you. Active may reimburse itself for any credit card charge backs and associated fees out of registration fees collected by it. In the event such funds are not available, you agree to reimburse Active for any charge backs or refunds. 6. Consulting Fees. Consulting Fees are more specifically described in Exhibit 1. All fees set forth in this Agreement and in Exhibit 1 will be due within 30 days of invoice date. Each Fee is due on or prior to the 15"' day of the first month of the billing period. Any Fees rendered later than this deadline shall accrue interest at the annual rate of 10%. In the event of delay in paying a Fee, you shall reimburse Active for any legal fees incurred by Active in its collection efforts. Page 1 of 3 tip NETWORK 7. Disclaimer of Warranty/Limitation of Liability. Active expressly disclaims any warranty that the use of its Intellectual Property, the Product, or the Services will be uninterrupted or error free or that the specifications will meet your requirements. The Intellectual Property, the Product, and Services are provided to you on an "AS -IS" basis without warranties of any kind, either express or implied, including without limitation warranties of merchantability or fitness for a particular purpose. Active's total liability under this Agreement is limited to the amount of registration fees retained and not distributed to you and Service Charges collected hereunder. Active shall not be liable for indirect, incidental, consequential, or lost profit damages. 8. Term and Termination. The term of this Agreement shall be for two (2) years from the date set forth below, with automatic renewals for one (1) year terms thereafter until either party gives written notice to terminate this Agreement no less than ninety (90) days prior to the end of a term. Either party may terminate this Agreement upon a material breach by the other party if such breach is not cured within thirty (30) days following written notice to the breaching party. This Agreement is subject to the limitation in Article 8, section 3, of the Idaho State Constitution. 9. Representations and Warranties. Each party represents and warrants that it has the necessary and full right, power, authority and capability to enter into this agreement and to perform its obligations hereunder; that it owns or controls the rights granted or licensed to the other party herein; that the execution and performance of its obligations under this Agreement will not violate any known rights of any third party, any contractual commitments or any applicable federal, state and local law or regulation; and that to its knowledge the marks, logos and intellectual property licensed to the other party herein do not violate the proprietary rights of a third party. 10. Exclusivity. Active will be the sole and exclusive provider of the Services for your agency for the term of this Agreement. 11. Indemnification. Each party shall indemnify and hold harmless the other party and its directors, officers, employees, affiliates and agents, against any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that: (i) it is based upon the indemnitor's breach of a representation, warranty or obligation hereunder; (ii) it arises out of the indemnitor's gross negligence or willful misconduct; or (iii) it is based upon the indemnitor's violation of any applicable federal, state or local law or regulation. 12. Miscellaneous. Any notices shall be in writing by fax or airmail. ither party may assign its rights or obligations arising out of this Agreement without the other party's prior written consent, except t t Active may assign this Agreement in connection with any sale of all or substantially all of its assets or any other transaction in whi more than fifty percent of its voting securities are transferred. This Agreement shall be governed by the laws of the State of This Agreement contains the entire understanding of the parties regarding the subject matter and can only be modified by a subsequent written agreement executed by both parties. Sections 7, 9, and 11 of this Agreement shall survive any termination or expiration of this Agreement. The individuals signing below represent and warrant that they have the power and authority to bind the respective represent. o�!?/Iehidian, Fu 11 Le al Customer Name 3 A rzed gnats Ad dress Fa csimile Th(41± e Active Network Inc. Authorized Signa Exhibit 1 Hosted P roduct: ActiveNet OR Class Hosted Internet Registration Page 2 of 3 Date CIrQ- Date entities that they BIRAL wNwOVONETWORK Consulting Services Rate per Hour Number of Hours Total Services Cost A. Pre- Project Documentation $125 B. On -Site less than 3 days (PLUS AIRFARE B.i. Standard Consultants $155 B.ii. Senior Consultant I Project Planner $220 B.iii. Technical Specialist $250 C. On Site 3 days or More (PLUS AIRFARE C.i. Standard Consultants $125 C.ii. Senior Consultant I Project Planner $190 C.iii. Technical Specialist $220 D. 9 -Consulting (REQUIRES INTERNET ACCESS ON EACH PC D.i. Standard Consultants $100 30 $3,000 D.ii. Senior Consultant I Project Planner $190 D.iii. Technical Specialist $220 E. Weekend Surcharge * E.i. Standard Consultants $75 E.ii. Senior Consultant I Project Planner $75 E.iii. Technical Specialist $75 NOTE THAT RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER THAN AIRFARE Totals $3,000 Page 3 of 3